Chapter 12: Defamation
The importance of a free press is enshrined in the First Amendment to the United States Constitution, which provides that “Congress shall make no law… abridging the freedom of… the press.” The Oregon constitution, however, does not specifically mention a “free press,” but instead provides:
No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. (Oregon Constitution, Article I, section 10)
That provision exists in tension with Article I, section 10 of the Oregon constitution, which provides that “every man shall have remedy by due course of law for injury done to him in his… reputation.” There is an obvious tension between the right to speak freely and the right to seek redress from injuries caused by that speech. This chapter will explore the aspects of defamation law that are most relevant to media entities.
What is Defamation? “Defamation” is the term that has essentially subsumed the older terms of libel, which concerns written or printed defamatory statements, and slander, which concerns spoken defamatory statements. Although the law may sometimes still use the older terms, there is really no substantive difference between the two: both amount to defamation. Defamatory statements can be written, oral, broadcast, or pictorialized.
A plaintiff who sues for defamation must generally prove three things: (1) that a defamatory statement was made or communicated; (2) that the defamatory statement was published, and (3) that the defamatory statement caused the plaintiff to suffer damages.
Oregon courts have set forth the following definition of a defamatory statement:
A defamatory communication is one which would subject a person to hatred, contempt or ridicule, or tend to diminish the esteem, respect, goodwill or confidence in which one is held or to excite adverse, derogatory, or unpleasant feelings or opinions against one.
Newton v. Family Federal Savings and Loan Association, 48 Or App 373, 376, 616 P2d 1213 (1980). A person who is not directly named in the defamatory statement may still bring suit if he or she can prove that persons hearing the remarks would understand them to refer to the plaintiff.
Several types of statements are considered defamatory per se; in other words, the mere utterance of the statement is sufficient to defame someone. Historic examples of statements that are defamatory per se include statements that impute an inability or unfitness to perform the duties of one’s employment, accusations that one has committed a crime, or assertions of unchastity in a woman, or of having a “loathsome disease.” When a statement is defamatory per se, the plaintiff is not required to prove that he or she was damaged by the publication of the statement.
At the other end of the spectrum are statements that are not defamatory as a matter of law. Opinions defined as statements that cannot reasonably be interpreted as stating actual facts are protected by the United States and Oregon constitutions and are therefore not defamatory. Nevertheless, when an “opinion” implies the existence of undisclosed defamatory facts, it is actionable as a defamatory statement. Statements that are not defamatory per se nor capable of a defamatory meaning are considered reasonably capable of a defamatory meaning and are almost always resolved by the jury.
The second element a plaintiff must prove is that the defamatory statement was “published.” Publication means merely that the statement was disseminated or reproduced to another person. In the case of a broadcaster, newspaper, or other publisher, the publication will be obvious.
Finally, the plaintiff must show that he or she suffered damages as a result of the publication of the defamatory statement. Although this chapter will discuss in greater detail the types of damages for which a media defendant might be liable, it is worth reiterating here that statements which are considered defamatory per se are presumed to cause damage to a person’s reputation.
Oregon’s Retraction Statute: Truth is an absolute defense to an action for defamation; if the statement is true, a media defendant cannot be liable for publishing it. The Oregon legislature, however, has provided another way for a media defendant to attempt to insulate itself from some of the damages that might result from a defamatory statement. Oregon’s Retraction Statute, ORS 30.150-30.175, provides that a plaintiff may not recover so-called general damages (damages which are not measurable by proof of a specific monetary loss. In the context of defamation, general damages are designed to compensate the plaintiff for the harm to reputation -a harm which is not measurable in a money loss.) unless a correction or retraction is demanded but not published. Otherwise, the only way a plaintiff might recover general damages is if he or she can prove that the media defendant actually intended to defame him or her a very high standard to meet. Even in that situation, the publication of a correction or retraction may be considered to mitigate the plaintiff’s damages.
The retraction procedure allows an allegedly defamed person or his or her attorney to make a written demand for correction or retraction that must be delivered to the publisher of the statement either personally, by registered mail, or by certified mail, return receipt requested at the publisher’s place of business or residence within 20 days after the defamed person first becomes aware of the defamatory statement. The demand for retraction must specify which statements are false and defamatory and request that they be corrected or retracted. In addition, the demand may refer to the sources from which the true facts may be accurately ascertained. The publisher then has two weeks after receiving the demand for retraction to investigate the demand and determine whether to publish a correction or retraction. The retraction must appear in the first issue published, or first broadcast made, after the expiration of the two-week deadline. The content of the retraction should substantially state that the defamatory statements previously made are not factually supported, and that the publisher regrets their original publication. Finally, the correction or retraction must be published in substantially as conspicuous manner as was the defamatory statement. In other words, a retraction regarding an article that appeared in the front page of a newspaper should not run in the classifieds section.
Publishers and broadcasters would generally be wise to consider publishing corrections or retractions, even when the demand suffers from a procedural defect, because the retraction statute provides a relatively cost-free method of eliminating a potential plaintiff’s claim for general damages.
Oregon courts have held that the retraction statute does not violate the Oregon constitution and that it applies only to publishers and broadcasters, and not to individual defendants whose statements happened to be published or broadcast.
In a case entitled Schenck v. Oregon Television, Inc., the Oregon Court of Appeals recently decided that each time an allegedly defamatory statement is republished, the defamed person is allowed a two-week opportunity to demand retraction. In the Schenck case, a television station broadcast a news report in October 1993 that contained an allegedly defamatory statement about the plaintiff. In March of 1994, the same report was re-broadcast. Although he was aware of the October 1993 broadcast, the plaintiff did not demand a retraction until April 11, 1994, within 20 days after the March 1994 broadcast. The Court of Appeals held that the plaintiff’s demand for retraction was not untimely notwithstanding the fact that he had actual knowledge of the defamatory statement five months earlier because “each publication is a discrete tort.”
Privileges: A media defendant might also be protected by the common law’s doctrine regarding privileges. A privilege is a right to make a statement, even if that statement is defamatory. Privileges fall into two categories: absolute and qualified.
An absolute privilege protects the speaker or publisher from any liability for defamation; the privilege is also referred to as “absolute immunity” because the speaker is immunized from liability. The doctrine of absolute privilege arose from the theory that there are certain circumstances in which the ability to speak freely usually in the context of governmental functions is so important that it outweighs the interest that an individual has in his or her reputation. Absolute privileges attach to statements made in the course of or incident to judicial proceedings, including statements made by witnesses and parties. An absolute privilege also attaches to statements made during quasi-judicial proceedings, such as proceedings before administrative boards, commissions, and disbarment actions. Statements made as part of a legislator’s duties are also absolutely privileged, although it should be noted that statements made by a legislator to the press outside the actual legislative meeting place and not during the legislative process are not absolutely privileged. Finally, an absolute privilege attaches to publications that are consented to (if the defamed person had reason to know that the published statement might be defamatory) and to statements that are made to carry out a statutory requirement.
Unlike an absolute privilege, a qualified privilege does not bar a defamation claim. Instead, it protects the speaker or publisher from liability unless the plaintiff proves that the speaker had “actual malice” a term that will be explained in greater detail in the next section when making the statement. Qualified privileges attach to statements that are either (1) made to protect the defendant’s interest, (2) made to protect the interests of the plaintiff’s employer, or (3) on a subject of mutual concern to the defendant and the person to whom the statement is made. For example, a former employer has a qualified privilege to make defamatory communications about the character or conduct of his or her employees to present or prospective employers. Other examples of statements that are subject to qualified privileges are the fair and impartial reports of judicial proceedings and “fair comment and criticism,” which permits commentary on matters related to government, public employment, or political campaigns.
Media Standards in Defamation Lawsuits: Historically, liability for defamation could be imposed without fault. In other words, regardless of the speaker’s motive, or even his or her knowledge of whether a statement was false, if the statement was defamatory then the defendant was liable. That analysis was changed in 1964 by the landmark case New York Times Co. v. Sullivan. In that case, the United States Supreme Court ruled that the First Amendment protected media defendants from strict liability for defamation when matters of public interest or concern were being discussed. The Court established the rule that when the defamation plaintiff is a “public official” or a “public figure,” the First Amendment shields a media defendant from liability for the publication of a defamatory statement unless it was published with “actual malice” that is, knowledge that the statement was false or reckless disregard as to whether it was true. Those two inquiries: whether a plaintiff is a public figure and whether the defendant acted with actual malice are the critical matters at the heart of every defamation suit against a media defendant.
Public Figure Plaintiffs: A media defendant can invoke the New York Times rule if the plaintiff is either a “public official” or a “public figure.” A government employee is a public official if (1) he or she has, or appears to have, substantial responsibility for or control over the conduct of governmental affairs, or (2) occupies a position in government that has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it.
Public officials will obviously be limited to persons employed by the government. However, because most plaintiffs will not be government employees, the critical question in most defamation lawsuits is usually whether a plaintiff is a public figure. Media defendants who can establish that the plaintiff is a public figure will have the benefit of the “actual malice” standard, which provides virtually bulletproof protection against defamation plaintiffs.
According to the United States Supreme Court, a person is a “public figure” if he or she achieves such fame or notoriety that he or she becomes a public figure in all contexts, i.e., becomes a household name. The more common public figure is a person who “voluntarily injects himself or is drawn into a particular public controversy” and is therefore considered a public figure for a limited range of issues. However, the controversy into which the plaintiff injects himself must pre-exist the defamatory publication; a person does not gain notoriety as a public figure simply as a result of the alleged defamation itself. In addition, the mere fact that events surrounding a private individual attract public and media attention does not transform that person into a public figure. Nor does a corporation become a public figure simply by opening its doors to the public, offering stock for sale, or advertising.
What is “Actual Malice?” If the court determines that the plaintiff is a public official or a public figure, then the media defendant can be found liable for defamation only if the plaintiff proves that the defendant acted with actual malice. As already described, a media entity acts with “actual malice” if it publishes a defamatory statement either actually knowing that the statement is false or with “reckless disregard” as to its truth. But what does “actual malice” mean in practical terms? It means that the plaintiff must demonstrate subjective knowledge on the part of the media defendant that the defendant knew that a statement was false or that it in fact “entertained serious doubts as to the truth of [its] publication.” McNabb v. Oregonian Publishing Co., 69 Or App 136, 140, 685 P2d 458 (1984) (quoting St. Amant v. Thompson, 390 US 727, 731, 88 S Ct 1323, 20 L Ed 2d 262 (1968)). Allegations that the defendant relied on statements from a single source, or failed to verify statements received from an adequate news source, or performed slipshod investigation have all been rejected as bases for inferring actual malice. Nor may malice be inferred from the fact that the accusations are of a serious nature, or that a published statement was not “hot news,” which might otherwise justify shoddy investigation. However, actual malice could be inferred from facts indicating that the defendant possessed information contradictory to what was published or that the defendant had serious doubts as to the trustworthiness of the source of its information.
In short, actual malice is not measured by what a reasonably prudent publisher would have published, or should have investigated before publishing. Rather, actual malice concerns only the subjective state of mind of the defendant at the time of the publication. Further, the plaintiff must establish by clear and convincing evidence that the media publisher acted with actual malice. That is a higher standard of proof than the typical “preponderance of the evidence” standard prevalent in most civil lawsuits.
Private Figure Plaintiffs: If the court determines that the plaintiff is not a public figure but instead simply a private individual, then the actual malice standard does not apply. A private individual need only prove that the defendant acted with ordinary negligence in publishing a defamatory statement. In a case titled Bank of Oregon v. Independent News, Inc., the Oregon Supreme Court held that when private figure plaintiffs are involved, media defendants are held to the same standard to which an individual defendant would be held. The Court also noted that the Oregon Constitution does not require that media defendants are treated differently than any other defendant would be in a defamation action.
The implications of Bank of Oregon are clear: when private individuals are involved, media defendants are held to a much higher standard and can more easily be held liable for defamation.
Damages: Assuming that the jury has found liability, what kinds of damages can be assessed against a media defendant? A defamation plaintiff may recover only compensatory damages against a media defendant that is, damages that compensate him or her for the harm done to reputation. Remember, if the statement is one that is defamatory per se, the plaintiff does not need to prove any special damage. In such a case, the plaintiff is entitled to recover general damages, which include harm to reputation, without evidence of the harm incurred. Even where the defamation is actionable per se, the plaintiff may recover “special damages” over and above general damages, if he or she pleads and proves that the defamatory statement was a substantial factor in causing that harm. Such special damage may include an inability to obtain employment. However, the Oregon Supreme Court has ruled that media defendants may not be held liable for any emotional distress, bodily harm, humiliation, or mental anguish that results from the publication of a defamatory statement. Wheeler v. Green, 286 Or 99, 124, 593 P2d 777 (1979). Finally, punitive damages are not allowed in actions for defamation.